Elder guardianship: Between a rock and a hard place

Marise London has dementia and her daughter Julie Ferguson, left, is trying to fight court decisions that have placed her mother under the control of a professional guardian. (Staff photo / Thomas Bender)

Julie Ferguson wishes now she had never made the first phone call.

It was in the autumn of 2010, after she noticed strange notes by the phone at her mother’s house on Siesta Key: “Change will.” “Change power of attorney.” “Send money to Tennessee.”

Ferguson says she worried that her mother — then 81 and clearly already having problems with memory and reasoning — was sending money and jewelry she could not afford to lose to a family member who had moved away. An attorney advised her to get help from the Department of Children and Families’ Adult Protective Services division.

“I was scared,” she recalls. “I thought, ‘I’m not going to be able to keep her in her house and that’s all she ever wanted.' ”

“I want to stay in my home until I die,” London wrote in February 2013. “I chose Julie to fulfill those wishes. I still choose Julie and trust Julie for my care as she knows my wants and needs. I hate for strangers to come inside my house.”

Ferguson’s attempt to free her mother from the system — or at least be named as the guardian of her person, if not her property — has gone nowhere. Ferguson still owes thousands to the attorney she hired to represent her, and cannot find another who will take her case.

Many Floridians who find themselves wards of the state took steps in the past to make sure their fortunes and futures were secure, signing documents and appointing people they trusted to manage their affairs if they could not.

But Southwest Florida’s guardianship case files are full of examples where life did not go as planned.

“I have spent the bulk of my career telling clients how to avoid guardianship,” says Bernard A. Krooks, an elder law attorney considered a national expert in special needs planning. “Having been around the block, I now understand that’s not true. Having all the right documents doesn’t guarantee that the people you choose will do the right thing, or that others won’t accuse them of doing the wrong thing.”

Florida’s guardianship statute — considered a model for other states — favors placing incapacitated adults in the care of family members. But feuding relatives can find in court that their desires and entitlements are trumped by what the system calls “the best interests of the ward.”

Unable to sift through a family mess, judges resort to professional guardians who can restrict access to the elder and spend money in ways the family cannot control. People who call Adult Protective Services hoping to resolve a family conflict can wind up regretting that they unleashed such a powerful force.

“If the family’s squabbling, it’s easier to name a third party and tell everybody it will be OK,” says Diane Menio, executive director of the Center for Advocacy for the Rights and Interests of the Elderly in Philadelphia. “It puts the family in a difficult situation, and not all those families are abusive. Even if they were abusive, it doesn’t mean that their mother or father doesn’t still love them and want to see them.”

A study of guardianship case files — the parts that are not confidential — reveals that professional guardians have a fairly routine playbook. After placing a ward in a facility or — less frequently — arranging for care at home, they inventory the assets and start selling them off. The car is usually first, then household goods, then the house itself. The assets are used to pay the caregivers, the attorneys and the guardian — until the money runs out, the ward dies, or both.

Professional guardians and elder law attorneys, perhaps jaded from struggles with dysfunctional or uncaring families, are quick to believe that relatives who buck the system are simply trying to protect their inheritance. But these relatives say they and their loved ones are being denied due process, because the only way to challenge the system is to spend more money on attorneys who fail to work on their behalf.

“The guardians have their attorneys, and that’s where the money really goes; it’s the attorney fees,” says Sam Sugar, an Aventura doctor of internal medicine who founded an organization called Americans Against Abusive Probate Guardianship. “The local guardianship companies make it their business to hire every lawyer that could possibly be in probate court to do some work for them. When a victim is looking to hire the best possible attorney, that attorney is not available.”

An exclusive club

For conscientious attorneys, guardianship cases can easily require more time and effort than most clients can afford, and their hourly fees are capped in some jurisdictions — including Sarasota and Manatee counties — but not others.

Court-appointed attorneys for prospective wards have no incentive to buck the system, says Menio.

“It’s really just any lawyer who happens to be in the hallway, and they can’t say no to the judge,” she says. “There’s very little compensation — unless the ward has money, and then they’re lining up for that.”

This economic reality creates a small pool of attorneys who handle such cases. In any community, they see each other often, sometimes representing the petitioner, sometimes the ward, sometimes the guardian.

“There are so few who do the guardianship work,” said 12th Judicial Circuit Judge Deno Economou, who has been handling these cases in Sarasota and Manatee counties for roughly two years. “For some reason, attorneys have not gravitated to that area of practice.”

He often relies on their expertise, adding: “I’m the type of judge that if I don’t know, I ask somebody. These are the types of attorneys you can turn to.”

But critics worry that this kind of reliance sets up a conflict of interest. Lawyers and professional guardians in Florida are asked by the probate court to take on the cases of indigent wards, and the same court assigns them to cases that have the potential to be lucrative.

Every prospective ward must be represented by an attorney, and this assignment process — referred to in Sarasota County as “the wheel” — varies from one jurisdiction to another and can operate in mysterious ways. A study of guardianship case files in Sarasota County shows the same attorneys’ names turning up frequently; others only rarely.

Critics say it creates a situation in which judges, attorneys and guardians operate in a system of mutual obligation.

“Alliances are forged, friendships are forged, and interesting relationships develop,” Sugar maintains. “It’s an incestuous type of relationship. The reason some guardians are in business is because it is an open piggy bank to enormous estates. If you are interested in making a lot of money really fast, you can charge any amount of hours you want.”

Sugar, who is “mostly retired,” says he founded his organization after being drawn into a bruising legal struggle with his wife’s relatives.

“Truthfully, no one wants to do this,” he says. “This is not something I planned on spending my golden years doing. But this guardianship system is maybe the most egregious thing I ever encountered in my 67 years on the planet.”

The number of Floridians who make a living as elder guardians has exploded in the last decade, rising from 23 registered professionals in 2003 to 440 today. Financial and legal sector layoffs in the Great Recession led some into a profession where the low bar to entry amounts to 40 hours of training and the lack of a criminal record.

But Gerald Hemness, a Brandon attorney who has written a manual for guardians, says an unsustainable business model has driven some qualified guardians to leave the profession.

“They work selflessly, and they don’t get paid on a massive number of cases,” he contends. “But that does not suggest there aren’t inexperienced, poorly trained, incompetent guardians out there. Unfortunately, the ones that are better prepared and have more training struggle on an every-case basis to be paid for the work they do.”

Hemness objects to the “loud cacophony” from critics like Sugar, “that guardians are evil and the courts are corrupt. It’s a gross misstatement, a stereotype that’s utterly inaccurate. The vast majority of the people under guardianship need to be there.”

Sugar admits that some of these professionals are motivated by a desire to help the helpless.

“Yes, there are some wonderful guardians; there really are,” he says. “God bless them. But there are a significant number of predatory guardians who work with predatory attorneys.”

Once wards are enmeshed in the system, Sugar adds, going before the same judge who took away their rights and trying to get that decision reversed or modified can be daunting — even with money and connections.

“Our attorney, who is an honest man and has tried hard for us, can’t get past first base,” Sugar says. “Clarence Darrow couldn’t win these cases.”

Getting the checkbook

Douglas J. Shadle, a psychiatrist in Punta Gorda, has performed mental status exams of prospective wards for 15 years. He is troubled by what he sees as an increasing trend toward “asset-centered guardianships” — where money is the focus, and not the individual’s needs and rights.

“Too frequently now, the petitioner and the petitioner’s attorney have little interest in the autonomy of the alleged incapacitated person,” he says. “It’s more about the person’s assets or about a hospital not wanting to spend any more on the person’s care.”

Anyone can petition the court to appoint an emergency temporary guardian for an elder, even before an examining committee — usually a doctor, a nurse and a social worker — finds any lack of capacity. Shadle does not believe huge numbers of prospective wards are incorrectly diagnosed as having dementia. Of about 800 evaluations he has done, he estimates that “maybe 30” were not incapacitated.

The problem, he believes, is that incapacity can become a license for access to estates.

“You get petitioners who can’t articulate what the alleged incapacity is and just want to get hold of the checkbook,” he says. “We get a lot more of those now.”

Shadle sees attorneys who file hasty petitions with “assets unknown” and no relatives’ contact information on the document. Often in these cases, family members don’t learn about the guardianship process until it’s too late to stop it.

“The lady I saw this morning,” he says “in this temporary filing it listed her son and two daughters. The son was in Michigan, address unknown; the daughters were in New Jersey, address unknown. I asked her for some information about her kids; she had it right there — addresses, phone numbers. I don’t think that’s right.”

Florida’s guardianship statute favors relatives as a ward’s most logical caregivers. But in practice, professionals tend to keep them in the dark about how the system operates — either because dysfunctional families are difficult to work with, or because there is more profit in keeping things professional.

“I think they need to be a lot more aggressive about trying to find the family at the beginning,” Shadle says. “Sometimes you don’t want to turn over that stone, but the law says that’s where you have to start. The attorneys and the guardians have a cozy relationship, and there’s kind of a quid pro quo there, that tends to shut out family persons.”

Shadle is also troubled by the latitude guardians have to spend their wards’ funds as they see fit, with almost no court oversight.

“We’ve got a lot of professional guardians who are really good, but I think they get tempted sometimes,” he says. “If there’s a circle of attorneys and other colleagues, and nobody is saying, ‘Wait a minute; you can’t do that’ — it just goes on.”

A costly status quo

Four years into her mother’s life as a ward of the state, Julie Ferguson’s emotions are still as raw as sushi. She can’t talk about their quandary without stopping to weep, and her outbursts in court and arguments with her mother’s guardian have probably not helped their case.

When she took her mother on a court-permitted vacation to North Carolina a year ago and did not return to Florida on the agreed date, she was threatened with an emergency injunction. After that, Lutheran Services of Florida — a Sarasota nonprofit agency with a caseload of about 300 wards, 70 percent of them indigent — refused to agree to Ferguson’s request to become co-guardian of her mother’s person.

If she wants to petition for full guardianship, she says, her current attorney would charge a minimum of $7,500 — on top of nearly $9,000 she estimates she has already paid and the $9,000 she still owes. Ferguson has searched through the Tampa Bay area for another attorney, without success.

Lutheran Services pays itself $85 an hour out of London’s assets for caregiving tasks that her daughter says she can do for free. This can result in a duplication of efforts Ferguson finds absurd and frustrating. According to court documents, these charges range from $8.50 for a guardian to call a doctor’s voice mail and hang up, to $170 for the guardian to spend two hours at London’s home for a doctor visit while Ferguson is there as well.

Marise London. (Staff photo / Thomas Bender)

London doesn’t like people coming to her house and fears doctors especially, her daughter says, so she tries to learn about appointments and show up for them.

At this point, Ferguson says, “I’m just grateful they allow me to assist and see Mom, despite accusations of ‘interference.’ They keep saying if she doesn’t cooperate, she’s going to assisted living.”

Anne Ridings, director of guardianship for Lutheran Services, says Ferguson’s arguments with a sibling have made the London case complex.

“We’ve been working diligently trying to make things work with the family,” Ridings says. “One adult child doesn’t want any contact or information; the other two are continuously fighting and pointing the finger. Her goal has been to stay at home, and we’ve been working almost two years to try to keep her at home. She’s still at home; we haven’t moved her.”

As London’s guardian, Lutheran Services has the power to cut off her family access completely, sell her house and move her to a long-term care facility. But Ridings says they are obligated to consider the ward’s interests, even if that means dealing with difficult family members.

“I don’t take it personally,” she says. “Our job is to help our client and make sure her needs are being met in the environment best for her.”

Ferguson knows she must walk a fine line for her mother’s sake. But as London’s savings dwindle, she says, she can’t help resenting the system’s inefficiencies. Every dollar out of her mother’s pocket, she fears, hastens the day when the Siesta Key house must be sold to pay for her care.

This is why the episode of London’s car still rankles.

Against London’s and Ferguson’s wishes, Lutheran Services decided to sell the car. As is customary in Sarasota guardianship cases, a single dealer — Anger’s Car Finders — provided an appraisal that was also a bid: $2,487, according to court documents. Ferguson said that was too low, and offered to buy the car herself for $3,600 — which her mother’s court-appointed attorney accepted. She says she sold it quickly for $5,000.

Listed as part of more than $10,000 in fees to that attorney was a total of $366 for the task of selling that car — including the time it took to deal with Ferguson’s higher offer.

Ferguson says such mounting costs have placed her in a losing situation.

“The charges become so exorbitant that the adult child finally has to give up the fight,” she says. “Meanwhile, I can’t get another attorney to touch this. They say I can’t win, because I ‘waited too long.’ This is so the opposite of what I learned in my guardianship class.”

Ridings says that once a guardianship is in place, adult children have likely already waited too long to address a parent’s needs.

“It’s very difficult when you’re the child of a parent that is now having early signs of dementia to step in and say enough is enough,” she says. Not acting in time “can sometimes create the illusion of neglect; maybe somebody goes out and sees that she hasn’t eaten and isn’t taking her meds.